THE COURT: I will ask counsel for Mr. Barker if he wishes to make a statement on behalf of Mr. Barker?
MR. SCHULTZ: Your Honor, Daniel Schultz for Mr. Barker, Mr. Martinez, Mr. Gonzalez, and Mr. Sturgis.
I would like to make a brief statement with respect to all four of my clients, Your Honor.
Your Honor, I cannot add anything about my clients' background which has not been presented to the Court and the very thorough presentence report. I simply want to point out to Your Honor that with the exception of their involvement in this case, their background are one of honor, dignity, and ones which any person would be proud of.
They have devoted the majority of their adult lives to a fight against tyranny, they risked their lives repeatedly for fighting for the principles and the freedom that this country stands for.
They did not realize that their involvement in this case and the activities would constitute a blemish on their lives and on their records.
I believe all this points toward leniency, Your Honor, and in connection with any terms of imprisonment I would specifically request Your Honor to recommend that the Bureau of Prisons give consideration to incarceration at the institution at Eglin Air Force Base in Florida. All four of my clients are from the Miami area, they are not wealthy men and this would allow their families to be able to visit them while serving their time.
Thank you, Your Honor.
THE COURT: Mr. Barker, do you wish to say anything in your own behalf or offer information in mitigation of punishment?
DEFENDANT BARKER: No, sir.
THE COURT: All right, sir.
I take it your statement applies to all four Defendants?
MR. SCHULTZ: Yes, Your Honor.
THE COURT: Mr. Martinez, do you wish to add anything to what your counsel said or offer information in mitigation of punishment?
MR. MARTINEZ: No, Your Honor.
THE COURT: Mr. Sturgis, do you wish to make a statement or offer any information in mitigation of punishment?
MR. STURGIS: No, Your Honor.
THE COURT: Mr. Gonzalez, do you wish to make any statement at all?
MR. GONZALEZ: No, sir, Your Honor.
THE COURT: Very well.
Now, does counsel for the Government wish to make a statement?
MR. SILBERT: If the Court please, the general introductory comments that I made previously apply to all the Defendants in this case.
With respect to the Defendant Hunt, if the Court please, we do think the Court should consider his family situation, the fact he entered a plea of guilty, however, we think the Court should also consider the fact that together with the Defendant Liddy he was an organizer and a leader of this unlawful conspiracy. It was he who recruited the four Defendants from Miami, persons who were persuaded to join this unlawful conspiracy by virtue of their total loyalty to him. It was he who recruited the college student who by the lure of money involved in the criminal conspiracy until he quit the conspiracy.
It is true he has rendered public service, he has had great opportunities, opportunities that he has devoted to the service of his country, but also in a sense as I pointed out before it is that which makes his conduct in a sense so culpable and blameworthy.
With respect to the four Defendants from Miami, I will consider them as a group. These Defendants, if the Court please, voluntarily participated in what were in fact violations of law. As such they were clearly guilty and as Your Honor knows, we have recommended they be sentenced to a term of imprisonment.
If Your Honor accepts our recommendation, we do think there are two factors we wish to bring to your attention.
First of all, that their participation in this criminal conspiracy was in fact induced by one of the organizers of the conspiracy.
Secondly, it is true they did not cooperate with the Government in this case but I think as Your Honor is well aware throughout this case they were represented by one attorney which in fact as a practical matter made the individual cooperation of any one of them impossible.
Secondly, despite the fact that prior to trial these four Defendants wished to plead guilty. It is a matter of record that their attorney prevented them from so doing and over their objection proceeded to make an opening statement in which he raised a defense for which there is no basis in law. In fact, though these four persons who in effect may be perhaps following orders retained this one attorney. As matters turned out they were his captives in a relative sense, if the Court please, we think though their guilt is clear their moral culpability is of a lesser degree.
THE COURT: All right, let the Defendants be seated.
Now with respect to the five Defendants who have entered guilty pleas, that is, Messrs. Hunt, Barker, Martinez, Sturgis, and Gonzalez, the Court finds that it requires more detailed information before it can make a final determination of the sentences to be imposed.
The Court will therefore implement, at this time, the provisions of Title 18 United States Code Section 4208(b). That section reads as follows:
"(b) If the court desires more detail information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment, * * * and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section."
Now the effect of the Court's ruling then is this:
First, each of you five Defendants now before me are provisionally committed for the maximum sentence of imprisonment prescribed by law for your offenses.
Second, a study will be conducted under the direction of the Bureau of Prisons. Within three months, the Court will be furnished with the results of this study together with any recommendations made by the Director of the Bureau of Prisons.
Should more than three months be required, the Court may grant time for further study up to an additional three months.
Third, once the studies with respect to each Defendant are completed and the Court has analyzed the information contained therein, the Court will make a final disposition of your cases.
The Court will have basically three alternatives: (1) To affirm the sentence of imprisonment originally imposed, that is, the maximum sentence; (2) to reduce the sentence of imprisonment as the Court deems appropriate; or (3) to place the Defendant on probation.
In any case, the terms of sentence will begin to run from the date of original commitment.
Now the fact that I am submitting the matter for further study does not mean that I have given little or no thought to a sentencing decision. The Court has already given a great deal of consideration to sentencing in each of your cases. I have carefully studied the presentence reports and the trial transcripts.
Among other things, I have taken into consideration, and will keep in mind, the fact that each of you voluntarily entered pleas of guilty.
On the other side of the scale is the fact that none of you have been willing to give the Government or other appropriate authorities any substantial help in trying this case or in investigating the activities which were the subject of this case.
I think, under the case law, the Court is entitled to consider this fact in determining sentences.
For the record, I will cite two cases which discuss this aspect of sentencing: United States v. Sweig, 454 F.2d 181 (2nd Circuit 1972), and United States v. Vermeulen, 436 F.2d 72 (2nd Circuit 1970) certiorari denied 402 U.S. 911, 91 S. Ct. 1390, 28 L. Ed. 2d 653, by the Supreme Court.
I believe I may also properly suggest to you that in the interval between now and when the Bureau of Prisons studies are completed you give serious consideration to lending your full cooperation to investigating authorities.
Now I want to speak plainly about this matter. You will no doubt be given an opportunity to provide information to the Grand Jury which has been, and still is, investigating the Watergate affair and to the Senate Select Committee on Presidential Campaign Activities.
I sincerely hope that each of you will take full advantage of any such opportunity. My sentiments in this regard are identical to those expressed on February 28th of this year by Judge Warren J. Ferguson, a United States District Judge in Los Angeles, California and a man for whom I have the highest admiration. Judge Ferguson has before him a matter which is, in many respects, analogous to this case. That proceeding grew out of certain unlawful transactions revealed a few years ago involving a one-time sergeant major of the Army. This man and others pleaded guilty before Judge Ferguson on the 28th to an information charging them with fraud and corruption in the operation of the United States military clubs in parts of Europe, Viet Nam and the United States. At the time of the plea, Judge Ferguson made a statement which I am going to read now. He has stated the matter exceptionally well. I quote:
"There are various sentencing philosophies: To deter other people from committing crime, to deter the defendant himself from committing other crimes against the Government, to rehabilitate people and all of the other various philosophical reasons why judges sentence people.
"In this case, for various reasons which are not necessary for the Court to express from the bench, I am more concerned that the activities to which you have pled guilty will not occur in the future by any other sergeant of the Army, sergeant major of the Army, any master sergeant of the Army, or any staff sergeant of the Army or anybody else in the military system and I don't know whether or not the three of you are isolated incidents of the things to which you have pled guilty and whether or not it is the system which permitted this activity to take place.